2014Da215802 Unlawful gains

Sung Ho Industrial Co. Ltd.

New Tech Co., Ltd. (former trade name before changing: Maulex Co., Ltd.)

Busan High Court (Chowon) Decision 2012Na3732 Decided June 12, 2014

November 13, 2014

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1, Article 61 of the Commercial Act provides that, where a merchant commits an act on behalf of another person within the scope of his/her business, he/she may claim reasonable remuneration for such act, which is different from the provisions of Articles 686 and 701 of the Civil Act that no special agreement can be made even if he/she commits an act on behalf of another person, the act of the merchant shall aim at profit-making, and where he/she has provided efforts for others within the scope of his/her business, he/she shall expect the remuneration, and where he/she has provided efforts for others within the scope of his/her business, it shall be deemed that the payment of remuneration for response is in accord with the common sense

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff, a company engaged in the industrial pipeline processing business, etc. under the adopted evidence, supplied main water from the defendant around May 201 at the request of the defendant company engaged in the business of manufacturing and selling automobile parts until October 201, after processing the parts of this case, and supplied the defendant. The plaintiff and the defendant dismissed the plaintiff's claim for a contract under the premise that there is no evidence to support the fact that the defendant agreed to pay the plaintiff the remainder after deducting 5% of management expenses from the processing expenses for the parts of this case, which were paid by the defendant, as the main contractor, to the plaintiff, as the management expenses for the parts of this case. In light of Article 61 of the Commercial Act, which provides that when the merchant performs an act on behalf of others within its business scope, the defendant is liable to pay the plaintiff a reasonable remuneration for the parts processing of this case from the above processing expenses for the plaintiff, and determined that the defendant's remaining amount after deducting the above processing expenses from the defendant's 207.5% of the above processing expenses.

Examining the reasoning of the judgment below in light of the records, the fact-finding and judgment of the court below are all justifiable, and there is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or exceeding the bounds of the principle of free evaluation of evidence, or misapprehending the legal principles

2. In light of the record as to the ground of appeal No. 2, there is no evidence to acknowledge that the Defendant’s unit cost for processing costs received from the above-mentioned child is KRW 2,250 among the parts of the instant case that the Plaintiff processed and supplied to the Defendant, and instead, according to the result of the fact-finding conducted by the Defendant as to the above-mentioned child, the unit cost for processing costs paid to the Defendant for each of the above parts is 805 won and 801 won, respectively.

Nevertheless, the court below accepted the plaintiff's assertion as it is and calculated the remuneration for the part processing of this case to be paid by the defendant to the plaintiff on the premise that the unit cost paid by the defendant to the above part is KRW 2,250, respectively. Such judgment below erred by misapprehending the legal principles on the evidence judgment principle and the burden of proof and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Go Young-young

Justices Kim In-young